The mention of a tattoo is not usually followed by questions on copyright but increasingly companies, advertising agencies and film studios are being faced with this issue. Could photographing or filming a person with a tattoo breach the tattoo artist’s rights? Mike Tyson’s tattoo and its reproduction on the face of Ed Helms in “The Hangover Part 2” was subject to a claim by S Victor Whitmill (the tattoo artist) against Warner Bros for copyright infringement. The case settled out of court however, so there is no decision to offer any guidance.

Are tattoos subject to copyright?

There is also little guidance in the United Kingdom that deals directly with the copyright status of tattoos but as a graphic design, they could well be protected as an artistic work. Although some designs may lack even the minimal level of originality needed for protection, the relevant legislation is not concerned with artistic quality and would likely cover many designs.

The Court of Appeal has previously suggested that a person’s skin was not an appropriate surface for a painting when it decided that the makeup design that Adam, of Adam and the Ant, had created for himself was not capable of copyright protection. However, the primary basis for the decision was the temporary nature of the makeup – a problem that a tattoo would not face.

Who owns the copyright?

The existing principles of copyright ownership mean that the artist himself would be the owner of the copyright of the design in the absence of a specific agreement to the contrary. However, there is also the question of the rights of the person with the tattoo.

The Court of Appeal in Ghent, Belgium looked at these issues in 2009. It tried to balance the competing intellectual property rights of the artist and the human rights of the person with the tattoo. It held that the artist’s copyright was limited to the design itself. The artist would have the right to tattoo the design on another person but could not interfere with the activities of the person with the tattoo.

Should companies be concerned?

It seems almost unavoidable that as the popularity of body art grows, more people will start to assert rights in their tattoo designs. The most likely scenario is where a tattoo features in a highly publicised commercial setting such as an advertising campaign. Forbes Magazine reported this month that the NFL Players Association in the United States is sufficiently concerned with the ownership of copyright in tattoos that it has asked its football players to get releases from the artists of any future tattoos.

As celebrities are increasingly exploited for commercial purposes, through endorsements, sponsorships and advertising it is unwise for companies to ignore the exposure to a potential claim.